On Ronald Dworkin And Citizens United

by Pejman Yousefzadeh on May 30, 2010

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Wandering around in the archives of the New York Review of Books, I find this attack on the Supreme Court’s Citizens United by the legal philosopher Ronald Dworkin. In response to Dworkin’s critique, the noted First Amendment advocate Floyd Abrams penned a thoughtful and excellent response that consisted, in part, of an attack against Dworkin’s tendency to ascribe bad motives to the Justices who made up the majority. Abrams’s reply to Dworkin is instructive in no small part because it reveals which side in the debate on Constitutional jurisprudence and interpretation here in the United States is the best and most reliable advocate of free speech:

Dworkin vigorously differs with the Supreme Court’s ruling in the Citizens United case. Not content to rely on his arguments on the merits, he offers two theories to explain how the majority of the Court reached its decision. One possibility, he suggests, and a supposedly “generous” one at that, is that the opinion reflects the majority’s “instinctive favoritism of corporate interests”; the other is that the opinion was drafted to favor the interests of the Republican Party. Dworkin does not entertain the possibility that the jurists reached their ruling for the reasons, rooted in the First Amendment, that they expressed.

This is not only unworthy criticism but omits a long list of others, whose views were generally far from the Court’s current conservative majority, who agreed with them on this issue. One would hardly suspect from Dworkin’s accusations that President Harry S. Truman had vetoed the very section of the Taft-Hartley law in 1947 that first banned corporate and union independent expenditures during election campaigns on the ground that the bill posed a “dangerous intrusion on free speech.”

One would not imagine that liberal Justices Rutledge, Black, Douglas, and Murphy—not exactly the Court’s greatest defenders of corporate interests—could have concluded in 1948 that the statute was unconstitutional because any “undue influence” obtained as a result of those expenditures was outweighed by “the loss for democratic processes resulting from the restrictions upon full and free public discussion.” And Dworkin hardly alerts the reader to the fact that nine years later, Justice Douglas, joined by Chief Justice Warren and Justice Black, again urged that the ban was unconstitutional, observing that the argument that some speakers were “too powerful” could not serve as a “justification for withholding First Amendment rights from any group—labor or corporate.”

Today, the more conservative members of this Court hold similar views to the more liberal jurists of a generation ago. That does not make them right, although I think they are. It does counsel caution on the part of those who differ with them from assuming that they can simply dismiss their arguments by attacking their supposed preconceptions or motives.

Excellent points all. In response to them, Dworkin argues that (a) because the legal reasoning in the Court’s majority opinion in Citizens United was “poor” in Dworkin’s opinion, it necessarily means that “some motive other than a desire to reach the right legal result”; (b) because Justice Alito and Chief Justice Roberts joined to overrule precedent in this case, despite having stated respect for precedent in the past, Dworkin’s attack was justified; (c) because the Court took a less expansive view of First Amendment rights in deciding Morse v. Frederick, the Court could not possibly have been concerned about First Amendment rights in Citizens United; and (d) because the Taft-Hartley Act’s ban was global, and because television advertising back in 1947 was not what it is now, bringing up its ban on free speech is inapposite.

To which, the proper response is (a) merely because Dworkin thinks that the legal reasoning in a particular case was “poor” does not mean that we ought to ascribe corrupt motives to the people who rendered the decision (the legal reasoning in Roe v. Wade, irrespective of whether one believes in the existence of abortion rights, is considered poor as well, but no one goes around calling Justice Harry Blackmun corrupt); (b) merely because Justices at times vote to overturn precedent, even after expressing respect from precedent, does not make the overturning of precedent corrupt; (c) merely because the Court fails to take an expansive view of First Amendment rights in one particular case does not mean that it should not take an expansive view of First Amendment rights in another case, or that doing so is somehow a corrupt act; and (d) merely because a free speech restriction is targeted, and that absent the restriction, a party will be able to use a medium with a tremendous capacity to influence others, does not mean that the restriction is proper, or that the party should somehow be prevented from using the medium in question.

It is genuinely amazing that the Citizens United case has attracted the animosity that has greeted it in the aftermath of the Court’s decision. Equally amazing is the failure to denounce those who attack the Court’s decision with shoddy arguments whose practical effect would be to fundamentally weaken First Amendment protections.

It’s a pity you don’t go into Dworkin’s substantial arguments. Are they really shoddy as you seem to imply? Is the primary goal of the first amendment, the protection of a healthy democracy, protected by this decision? Dworkin’s arguments strike me as remarkebly convincing.

JRod

How do you conclude, from the text of the First Amendment, that its primary goal is “the protection of a healthy democracy?” The amendment is a negative injunction against the regulation of speech and press: “Congress shall make no law abridging…the freedom of speech…” Promoting a “market place of ideas” is an incidental, and indeed beneficial, byproduct of constraining encroachment on speech.